Law versus Democracy: Court Capture, External Allies, and Democratic Backsliding in Turkey

Abstract

Because modern democratic backsliding increasingly occurs through legal means, courts are newly influential actors. While conventional wisdom holds that courts are defenders of democracy, I argue instead that courts often act as enablers of democratic erosion. Whether courts constrain or enable democratic backsliding depends on judicial power-sharing, or institutions that disperse or concentrate power over appointing judges. Courts enable backsliding when low levels of judicial power-sharing facilitate court capture, such that judicial decisions become closely aligned with one political camp. When combined with support from allies outside the judiciary, court capture generates stringent judicial constraints on non-aligned governments. However, when captured courts lose support from external allies, judicial constraints become precarious, since executive-judicial conflict alienates electoral majorities and imposes an “audience cost” on the court. I test this theory in contemporary Turkey by leveraging interviews with high-ranking Turkish judges, an original dataset and corpus of more than 5,000 decisions by Turkey’s Constitutional Court, a keyword-assisted topic model of judicial decisions, and a cross-national measure of judicial power-sharing in 139 countries.

Keywords: Democratic erosion, judicial politics, political polarization, rule of law, democratic backsliding, political institutions, Turkish politics, Middle East politics, European politics